In re Home Casual LLC

534 B.R. 350, 73 Collier Bankr. Cas. 2d 1384, 2015 Bankr. LEXIS 1705, 61 Bankr. Ct. Dec. (CRR) 19, 2015 WL 2414683
CourtUnited States Bankruptcy Court, W.D. Wisconsin
DecidedMay 19, 2015
DocketCase No. 13-11475
StatusPublished
Cited by1 cases

This text of 534 B.R. 350 (In re Home Casual LLC) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Home Casual LLC, 534 B.R. 350, 73 Collier Bankr. Cas. 2d 1384, 2015 Bankr. LEXIS 1705, 61 Bankr. Ct. Dec. (CRR) 19, 2015 WL 2414683 (Wis. 2015).

Opinion

MEMORANDUM DECISION

ROBERT D. MARTIN, UNITED STATES BANKRUPTCY JUDGE

The following facts are either admitted or taken as true only for the consideration of this motion to grant standing. Debtor Home Casual LLC operated as a supplier of outdoor furniture for national retailers, purchasing its products from manufacturers in China (including the movants). Don Coming, as 50% owner of Home Casual, and his children, Erin Corning and Kendra Farley, played a major role in the company’s operations. By July 2011, Home Ca[352]*352sual was insolvent. Still, it continued to negotiate with its creditors. In October 2011, Kendra formed another outdoor patio supply company that is now referred to as AMG International, LLC. By 2012, Home Casual had no customers or ongoing business of its own. Yet, it continued to pay salaries to Erin and Kendra even though it was clear any work performed was to benefit AMG. Erin and Kendra received a salary from the debtor during September 2011 to March 29, 2013 totaling $208,925 and $261,758, respectively.

On March 29, 2013, Home Casual LLC filed a chapter 11 bankruptcy but then immediately converted the case to a chapter 7. The trustee conducted several rule 2004 examinations and commenced adversary proceedings seeking to avoid transfers made to various creditors including Erin Corning and Kendra Farley. The movants, creditors Zhejiang Hemei Leisure Products Co., Ltd., Hangzhou Volly Garden Furniture Co., Ltd. and Hangzhou King-Rex Furniture Industry Co., Ltd. (collectively the “factories”), also filed an adversary proceeding against Erin and Kendra. The factories then filed this motion for an order granting standing to prosecute, on behalf of the debtor’s bankruptcy estate, preference and fraudulent transfer claims against Kendra and Erin pursuant to 11 U.S.C. § 544, 547, 548, and 550 and Wis. Stat. § 242.04 and 242.05.

The factories allege the salaries paid to Erin and Kendra are preferential transfers for several reasons: (1) the payments of debtor’s funds benefited Erin and Kendra; (2) each payment was made on account of an antecedent debt owed to Erin or Kendra; (3) Erin and Kendra are insiders because they are the children of Don Corning, who is the president and 50% owner of Home Casual; (4) 'it is highly unlikely the estate will pay all creditors’ claims in full, thus Erin and Kendra received more than they would have if the claims were paid in a chapter 7 case.

The factories allege the salaries were a fraudulent transfer for several reasons: (1) the payments were made as part of a scheme to benefit AMG to the detriment of the estate; (2) Don Corning demonstrated intent to place the value of debtor’s business outside of the reach of creditors by signing certain business agreements; (3) the debtor received no value for Kendra and Erin’s services to AMG; (4) the payments benefited Erin and Kendra who were insiders under an employment contract not in the ordinary course of business.

Although the factories had ongoing discussions with the trustee about various causes of action against AMG and the debtor’s insiders, the trustee declined to pursue salary avoidance actions against Erin and Kendra. Consequently, the factories request derivative standing to pursue those actions. Erin and Kendra object to this motion, arguing the avoidance claims are not colorable and even if the claims were, the trustee did not unjustifiably refuse to pursue them.

At the preliminary hearing on the motion, the factories proposed a contingent fee arrangement which would limit costs and fees to a reasonable amount of any successful recovery of the salaries. When questioned by the court, trustee’s counsel stated the salary avoidance action based on a theory of fraudulent transfer was not cost-effective to the estate as the trustee is already pursuing the overall value transferred to AMG. Counsel admitted there was no indication the defendants were not collectable and that the trustee’s current action would not recover the salaries. Counsel opined that the factories’ preference action had no merit.

[353]*353Under 11 U.S.C. §§ 544, 547, and 548, the trustee may avoid any transfer of an interest of the debtor in property which meets certain requirements. While the statutes clearly identify only the trustee as the holder of this right, courts have allowed other parties to avoid transfers if they could demonstrate derivative standing. Matter of Vitreous Steel Products Co., 911 F.2d 1223, 1231 (7th Cir.1990)(“Absent court permission, creditors are without authority to pursue a claim of fraudulent conveyance, Matter of Xonics Photochemical Inc., 841 F.2d 198, 202-03 (7th Cir.1988), to pursue a preference action, Koch Refining v. Farmers Union Central Exchange, Inc., 831 F.2d 1339 (7th Cir.1987), cert. denied, 485 U.S. 906, 108 S.Ct. 1077, 99 L.Ed.2d 237 (1988); Delgado Oil Co., Inc. v. Torres, 785 F.2d 857, 860 (10th Cir.1985), or to enforce the Trustee’s strongarm powers under § 544(a). Moyer v. Dewey, 103 U.S. 301, 26 L.Ed. 394 (1880); Boyd v. Martin Exploration Co., 56 B.R. 776 (E.D.La. 1986).”).

Courts employ different considerations when deciding whether to grant derivative standing.1 The United States Court of Appeals for the Seventh Circuit considers three factors:

A trustee may be divested of this exclusive authority [to collect and reduce to money the property of the estate under 11 U.S.C. § 704(1) ] only in narrow circumstances. When (a) thé trustee unjustifiably refuses a demand to pursue the action; (b) the creditor establishes a colorable claim or cause of action; and (c) the creditor seeks and obtains leave from the bankruptcy court to prosecute the action for and in the name of the trustee, then may an individual creditor or creditors’ committee prosecute an action originally vested in the trustee. Louisiana World Exposition v. Federal Insurance Company, 858 F.2d 233, 247 & n. 14 (5th Cir.1988); Koch Refining, 831 F.2d at 1346-47 & n. 9.

Matter of Perkins, 902 F.2d 1254, 1258 (7th Cir.1990). The first two requirements are at issue in this case.

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Bluebook (online)
534 B.R. 350, 73 Collier Bankr. Cas. 2d 1384, 2015 Bankr. LEXIS 1705, 61 Bankr. Ct. Dec. (CRR) 19, 2015 WL 2414683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-home-casual-llc-wiwb-2015.